Standing Committee A

[Mr. David Taylor in the Chair]

European Parliament (Representation) Bill

Clause 11 - Power to make consequential etc provision

Amendment proposed [this day]: No. 50, in 
clause 11, page 5, line 34, at end insert 
 '; provided that no such order shall be made until the Secretary of State has consulted the Chief Minister of Gibraltar as to what matters may be legislated in the House of Assembly in Gibraltar and what matters may be legislated in Parliament and thereafter such matters as the Secretary of State may by order prescribe to be legislated in the House of Assembly may be so legislated.'.—[Mr. Cash.]
 Question again proposed, That the amendment be made.

David Taylor: I remind the Committee that with this we are discussing the following:
 Amendment No. 55, in 
clause 12, page 6, line 44, after 'Commission', insert 
 'and the Chief Minister of Gibraltar'.
 Amendment No. 59, in 
clause 16, page 8, line 43, at end insert— 
 'provided that no such regulation shall be made until the Secretary of State has consulted in accordance with section 11(1) and it has been determined in which legislature which matters are to be legislated'.
 Amendment No. 62, in 
clause 17, page 9, line 16, after 'section 16', insert 
 '; provided that no such regulation shall be made until the Secretary of State has consulted in accordance with section 11(1) and it has been determined in which legislature which matters are to be legislated.'.

Yvette Cooper: It is a pleasure to welcome you to the Chair, Mr. Taylor.
 The amendments set out provisions in respect of consultation before the orders could be made. I shall say why the clause is as drafted. We put most of the detail in secondary legislation, because many of the provisions that need to be changed in order to allow Gibraltar to participate and be part of the same region in the European parliamentary elections are already in secondary legislation. It was therefore appropriate to make the changes through further secondary legislation. Moreover, much of the complicated detail would not be appropriate in the Bill. That is why we are making the changes by order. 
 We are aware from the meetings and the correspondence with the Government of Gibraltar in the past year that they welcome the opportunity in the Bill to give the people of Gibraltar a say in European democracy. They made it clear, too, that they recognise that because they will be treated as part of an elected UK region for these purposes, it is essential 
 hat UK electoral law is applied as uniformly as possible to Gibraltar. The Government of Gibraltar and the House of Assembly want to play their part in ensuring that the necessary legislation is put in place and that the system works effectively. There is scope within the existing provisions for that to happen. Discussions are still taking place and consideration is still being given to the changes that it might be possible to make through changes to Gibraltar law by the House of Assembly and the Government of Gibraltar. What changes will need to be made to the detail of UK electoral law through this Parliament is also being considered. However, we are keen that whenever possible changes can take place through the House of Assembly and Government of Gibraltar in Gibraltar. 
 At our last meeting with the Government of Gibraltar on 17 December the officials had a constructive and detailed discussion about the scope of the provisions. The meeting considered whether it was possible to include something in the Bill to reflect more clearly the fact that Gibraltar, too, would contribute to the creation of the legislation. We have given an undertaking to consider the matter, and if necessary we will introduce amendments at a later date.

William Cash: The Minister will no doubt be familiar with the situation in the Falklands, where such a contribution has not only been invited by the Government but has been acted upon. Some people would regard it as peculiar if that applied to the Falklands but not to Gibraltar.

Yvette Cooper: As I have clearly said, we believe that if it is possible for the Government of Gibraltar and the House of Assembly in Gibraltar to make the changes, it would be better for them to do so. That would be appropriate, as it is their law, and because it would mean that this House could confine itself to the issues that are relevant to UK law and to the business of the House.
 The amendments ask for consultation with the Chief Minister of Gibraltar on which matters may be legislated in the House of Assembly in Gibraltar and which may be legislated in Parliament. That discussion and consideration is already taking place. We do not need to wait for the Bill to make that happen. As I said, we want the Government of Gibraltar and the House of Assembly to be able to legislate whenever possible. The amendments are unnecessary because they refer to work that is currently under way. 
 I also made it clear that we are prepared to consider further amendments, in the light of the Chief Minister's request, to see whether the Bill could include anything else to ensure that it is clear to everyone that the Government of Gibraltar are playing a role in the process.

William Cash: The Minister indicated that discussions are being held and that some progress, albeit imperceptible and undisclosed, has been made. As she says, this is a complicated matter. However, there is also a matter of principle, which gravitates around the fact that subsidiary legislation, such as the order-making power and the amendments made to the 2002
 Act, enables the Lord Chancellor to make direct legislative provision for Gibraltar on such domestic matters as the registration of parties, party donations and broadcasting, which are all in the clause.
 Under clause 17(3), the part would be taken to modify, exclude or apply 
''any provision of the law of Gibraltar''.
 I have also suggested that proposed new section 7(4A)(c) under clause 21 be excluded altogether. 
 Clause 16 will enable the Lord Chancellor to do many of the things that one would reasonably expect Gibraltarian legislation to do. There is an understanding in Gibraltar that Gibraltarian legislation would have to be agreed with London to ensure uniformity of regime throughout the combined region, so there is no suggestion that the Gibraltarians will want to do something that is completely inconsistent with the uniformity of law, which the new region and new Gibraltarian voters will need. 
 None the less, the powers that are being taken to modify, exclude or apply any provision of the law of Gibraltar are draconian. Such powers have not been taken for 50 years. This is a backward step, which shows the reluctance with which the Government have proposed the provision. They were driven to propose it because of the Denise Matthews case, the spirit in which the matter has been conducted, and the failure adequately to consult the Chief Minister and others in Gibraltar. The Minister seems to dispute that, but that will be on the record and I will get further and better particulars of the degree of consultation that she claims has taken place. They certainly did not see a copy of the Bill before it was produced. People in the Falklands were invited to produce proposals for their constitutional changes and they were given a fair wind. One is bound to ask why, in relation to the important and immediate problem of Gibraltar, the Government takes such a position on that issue. The answer to that problem lies in the Brussels process and the dispute with Spain. 
 Under no circumstances could I believe that Parliament would ever countenance the idea of acquiescing in Spain's demands. The ramshackle discussions on the issue of sovereignty, which bit the dust, have been scuppered by the democratic wishes of the people of Gibraltar. The issue is whether the constitution would be made by a balanced and tolerant consultative process between the parties—one could say through a process of natural justice, which I advocate—and whether it would cater appropriately. That has been stated categorically by the Chief Minister in his discussions with me, which would indicate that the questions can be resolved if there is the will to do so. I have to say, without being the slightest bit curmudgeonly, that the de minimis approach adopted by the Government is too negative. Let us our raise our eyes to the hills and question whether it is possible to be a little more constructive and recognise the fact that the people of Gibraltar have a right to be properly consulted. 
 The Minister may know about the Gibraltar constitution order 2001. The present situation, which is directly relevant and important, is that the prescribed constitutional arrangements would be overridden by the exclusion, modification or application of law by the order-making powers, and that is geared to arrangements that currently exist under the Gibraltar constitution order 1969. 
 The draft Gibraltar constitution order was prepared by the House of Assembly and arose out of the discussions that took place at the same time as the Anglo-Spanish discussions, which were put in place by Mr. Caruana. The object of those was to modernise the constitutional relationship of Gibraltar with the United Kingdom. As a result of much detailed consideration, the Gibraltarian select committee on constitutional reform completed its draft in December 2001. That was submitted to the House of Assembly and Opposition parties for comment, published on 23 January 2002 and approved by the House of Assembly on 23 February. That draft has not been given a fair wind by the UK, despite what happened in the Falklands. It is outrageous that when Gibraltar brings forward such proposals it is faced with a complete blockage. I have no doubt that the Minister will receive advice presently with regard to some of those points, since pieces of paper are being passed around the Room. 
 The amendments contain the very points that one would have hoped and expected to have been dealt with by the Lord Chancellor, when he voluntarily made his proposals, and in consultation with the Chief Minister and others in Gibraltar, including the Leader of the Opposition. The key words, on which I shall concentrate, are that 
''The Committee's amendments''—
 the ones proposed by the people of Gibraltar— 
''are 'such as would maximise the self government of Gibraltar by the people of Gibraltar, whilst retaining British sovereignty and close links with Great Britain'.''
 Nothing could be more constructive and helpful than that. 
 I want to correct an extremely seriously mistake that I made this morning. I confess to having made the most serious historical error when referring to the conquest of Gibraltar by Admiral Rook. I was corrected when I said that it happened 1702—I was told that it was 1704—but it is much worse that. It was not a colony by conquest, but a colony by cession—[Hon. Members: ''Utrecht.''] Because of the treaty of Utrecht. I am glad to have received a unanimous shout of approval from the entire Committee. Without elaborating, it does make a difference. 
 The Select Committee's report continues: 
''The Committee's approach has been guided by its unanimous view that reform of the constitution should achieve both a suitable modernisation of the relationship with the United Kingdom . . . and that these reforms should, when and if accepted by the people of Gibraltar in a referendum, bring about its decolonisation of Gibraltar through the exercise of the right of self-determination by the people of Gibraltar, and Gibraltar's de-listing from the UN's list of Non Self-Governing Territories under Article 73(e) of the Charter.''
 Self-governance, in effect, is a recurring theme of the amendments, so one can hardly be surprised at the degree of concern, which I share, at the disproportionate imbalance in the centre of gravity of the proposals before Parliament today. 
 That imbalance clearly indicates not only a massive reluctance to accept the principles that the Government have been driven to put into the proposals, but that they have no understanding of the aspirations of the people of Gibraltar for a greater degree of self-government—with the caveat that they want to retain British sovereignty. Their wish for close links with Great Britain lies at the heart of the problems that I put to the Committee. 
 It is terribly important that we recognise that, when the Government legislate in that way, they create unnecessary problems. It does not help. It will not resolve the issues. I offer a word of advice to the Minister. We should return to a more constructive and useful discussion between the Government and the people of Gibraltar. I sense from what she says—I am not being negative in contending this—that the proposal is for a greater degree of open and fair discussion, on complementary terms, between the Chief Minister and the Government. As we make our way through the rest of the proposals, and in subsequent stages, it would be very helpful to get that on the right footing, 
 I hope that the Committee will be rewarded with some movement. From what the Minister has said, we are seeing a slight glimpse of that. She has not yet gone far enough, but perhaps as we proceed we will get further and better indications that the people of Gibraltar, the Chief Minister and others are being properly heard.

Yvette Cooper: I shall not respond to the wider issues that the hon. Gentleman raised about the constitutional status of Gibraltar, because the Bill does not address that. I shall also resist the temptation to respond to the hon. Gentleman's historical accounts.
Mr. Cash rose—

Yvette Cooper: May I tell the hon. Gentleman what I will respond to before he comes back?
 There are important issues about which detailed provisions—secondary legislation in this House—should be implemented in Westminster and which should be implemented in Gibraltar. That is under discussion with the Government of Gibraltar, because we are very sympathetic to their point of view. We are keen that as much as possible is done in Gibraltar. The broad principle should be that if changes to Gibraltarian law can implement the Bill and make it possible to hold European elections in both Gibraltar and a UK region, that should happen in Gibraltar. However, if it were necessary to amend a UK law such as the Political Parties, Elections and Referendums Act 2000 to allow that to happen, that must be done in Westminster, because it could not happen in Gibraltar. 
 Discussions about the changes that can be made in each place continue and will take a little longer to resolve. We also want to listen to the Government of 
 Gibraltar about whether more could be put in the Bill to ensure that that process occurs. That might not be necessary, but we are sympathetic to their concerns and we are considering that. The hon. Gentleman's amendment is unnecessary.

William Cash: May I pick up the Minister on an important point? We are making progress and hearing that there will be further discussions. Will the Minister give us an undertaking that the discussions will take place before Report or get so far under way that I can be assured that the matters will be discussed on Report, if necessary? The issue is at the heart of the Bill and it would be useful to know that.

Yvette Cooper: I would expect further discussion of the subject on Report, although I cannot guarantee that we will know the exact issues that will be addressed through secondary legislation in this place and those that will be addressed in Gibraltar by that time. That is partly because the details of electoral law that require amendment are complex and technical. An immense number of amendments might be required to ensure that the same electoral law and circumstances apply in Gibraltar as in the United Kingdom. We intend to do things as speedily as possible, and we have the ultimate deadline of the 2004 election. Everything has to be in place before then. Our aim is that anything that requires an amendment to the Bill will be resolved in time for consideration on Report, but the given complex nature of the issue, I cannot give the hon. Gentleman the guarantee that he wants. I can assure him only that we intend to allow the Government of Gibraltar to make their own decisions and pass their own legislation whenever possible. However, it will be necessary—we should not kid ourselves that it will not be necessary—for this House to pass secondary legislation.

William Cash: In the light of the Minister's remarks, the matter is sufficiently open to allow us to assume that we can return to it on Report. Assuming that we can accept that as an undertaking, I propose that we do not press the amendment on the grounds that we are making constructive progress. I look in the direction of the hon. Member for Somerton and Frome (Mr. Heath), and he concurs. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

William Cash: I beg to move amendment No. 53,
in clause 11, page 6, line 21, leave out subsection (6).
 I have nothing to add to the wording on the amendment paper. I admit that this is no more than a probing amendment. I was not at all sure of the provision's purpose, so I thought that it would be useful to hear what the Minister had to say.

Yvette Cooper: The hon. Gentleman poses a good question. I discussed the matter with my officials, to ensure that I understood it.
 The power in clause 11 allows for consequential changes that may be needed to different parts of electoral law in order to implement the core changes at the heart of the Bill. Powers are set out in other parts of the Bill. For example, clause 16 sets out order-making powers for establishing the register for 
 Gibraltar. However, consequential amendments may be required under clause 11 to deal with issues that affect the register, such as donations. 
 Subsection (6) makes it clear that it is possible to make consequential amendments, even in areas for which powers are set out in other parts of the Bill. In other words, the power to make the consequential amendments as set out in subsection (1) is not restricted by the fact that under clause 16 there are also order-making powers in respect of the Gibraltar register and the manner in which it is to be maintained, and so on. Provisions in other parts of the Bill do not prevent the making of consequential amendments under clause 11(1).

David Heath: Will the Minister explain the purpose of clause 16 if the power is available under clause 11?

Yvette Cooper: It is true that the Bill could have been written such that the main principle was set out in clause 8, with everything else done through secondary legislation, but we chose not to do that. We thought that certain issues that are fundamental to any system of elections, such as establishing the franchise and aspects of the registration process, were important and should be part of primary legislation. That is why clause 16 deals with registration and makes the central issues very clear for Parliament. Clause 11(1) concentrates on issues listed in clause 11(3), paragraphs (a), (b) and (c), such as donations and registration of political parties. They are not set out in the same detail.
 We tried to get a balance between the more detailed concerns, which can be dealt with through secondary legislation, and the principal concerns that required setting out in primary legislation.

William Cash: In a nutshell, this is an all-singing, all-dancing, Monty Python gobbling-up clause. Clearly, it is intended to cater for any contingencies that might arise. If there were any uncertainty as to whether adequate power had been taken, the Lord Chancellor, in his typical fashion, would guarantee to be able to exercise plenipotentiary powers as they arose under the provisions of this part of the Bill, which, after all, affects the people of Gibraltar, their domestic elections, their democracy, their self-government and all the other matters that we have discussed. Although it is a short provision, it is quite extensive.
 I should like to reserve judgment on this provision. I hope that allowing this through does not allow more to go through the back door than would be wise. I issue a word of caution. We need to consider this matter carefully against the background of what I have said already. In the circumstances and looking at the expressions of those behind and to the left of me, we are prepared to withdraw the amendment. However, we reserve judgment on exactly what the provision really means. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn 
 Question proposed, That the clause stand part of the Bill.

Yvette Cooper: The clause allows the Lord Chancellor to make provisions that he considers necessary or expedient in consequence of, or in connection with, the inclusion of Gibraltar in an electoral region for the purposes of European parliamentary elections. The Bill makes provision for the whole corpus of UK electoral law that applies for the purposes of election to the European Parliament to apply for these purposes also to Gibraltar. The clause, with the help of the supplementary powers in clause 12, will allow that to happen in relation to the registration of political parties under the Political Parties, Elections and Referendums Act 2000 and other Acts.
 It is important to make it clear that this is not an open-ended power. It applies only in connection with issues that are in consequence of, or in connection with, the inclusion of Gibraltar in an electoral region for the purposes of European parliamentary elections. It applies to some of the details surrounding the registration of political parties, but it does not provide powers for unrelated matters, such as the UK registration system or the voting age. It is further limited by clause 12(4), which ensures that the orders made here are limited by the rest of the Act. They can amend other Acts, but not the other clauses in this Bill. The clause allows for the implementation of the earlier clauses in the Bill to ensure that we can have European elections in Gibraltar by 2004. It is therefore important.

William Cash: We do not need to add anything to what has been said on this. We have had an extensive debate. We have been given an assurance on the seminal amendments to determine where the centre of gravity should be in the balance between the House of Assembly and the UK Government. We have been promised that there will be an opportunity for debate on Report. We have the gravest concern about the clause, but that said, in the light of what we have heard, it would not be right, on balance, to divide the Committee on clause stand part.

David Heath: In introducing the stand-part debate, the Minister helpfully expressed the limits of the application of clause 11. I was developing the view that clauses 13 to 16 were for illustrative purposes only, and that clause 11 gave a rather free rein to a Minister to whom we do not usually like to give a free rein, for various reasons. However, she has reassured me.
 There are still concerns about the way in which the democratic arrangements in Gibraltar will be brought into play. When we discussed that this morning, the Minister kindly said that she had been in dialogue with the Chief Minister and the rest of the Government of Gibraltar, and that they had expressed concerns. I ask her to go a little further and to share with members of the Committee, perhaps before Report, any written submissions that she has received from the Chief Minister about aspects of the Bill, so that we are fully apprised of what concerns remain outstanding for Gibraltar. That said, I am more than happy to allow 
 this clause to stand part of the Bill, with a view to discussing it at a later date. 
 Question put and agreed to. 
 Clause 11 ordered to stand part of the Bill.

Clause 12 - Sections 10 and 11: supplementary

William Cash: I beg to move amendment No. 54, in
clause 12, page 6, line 33, leave out subsection (4).

David Taylor: With this it will be convenient to discuss amendment No. 63, in
clause 17, page 9, line 22, leave out from 'Kingdom' to end of line 25.

William Cash: We now come to points that are fairly similar to those that we have already discussed, because clause 12 relates to matters supplementary to clauses 10 and 11.
 Clause 12 states that an order under clause 10 or 11 will be empowered to 
''modify, exclude or apply, with or without modifications . . . any provision made by or under an Act (including any provision which is modified by or under this Act or which confers power to make subordinate legislation) . . . and . . . any provision of the law of Gibraltar.''
 We have probably covered this subject extensively enough, because it raises the very questions that we have just discussed. However, there is grave concern in Gibraltar about any order made by the Lord Chancellor as a consequence of decisions taken by a Government who are going through with the Bill not with any great enthusiasm, but because they have been driven to it. 
 Even if we appreciate the point made by the Minister in respect of the previous clause that there has to be some degree of complementarity among the laws applying in the combined region, in Gibraltar and in the United Kingdom, we are none the less talking about a draconian power, which, as I understand it, has not been exercised for 50 years. At the very worst, an order could be made to exclude 
''any provision of the law of Gibraltar.''
 This is a pretty draconian and an extremely insulting provision. It certainly bears no relation to the good working relationship with the many thousands of electors in Gibraltar through their elected representatives in the House of Assembly and the legislature. Imagine if we were put in a similar position and somebody else—I hesitate to mention the European Union—came along and unilaterally knocked out our legislation. In the context that I have described, the difference is that there is at least a superficial indication that it is all part of a democratic process. In this case, it is simply a question of whether or not it is appropriate in a modern world for a Government, who have been moving towards greater human rights, democracy and constitutional correctness—I am not referring to the Government; I am talking about the Governments of the United Kingdom over the past 50 years—to recognise the integral and intrinsic rights of, in this case, the people of Gibraltar. 
 There was a more proactive invitation to accommodate the wishes of the people of the Falklands, but in this particular case to modify or exclude 
''any provision of the law of Gibraltar''
 is, by any standards, extremely draconian and offensive. I do not know what the Minister will say about it, although there is no doubt she will tell us that it is necessary. That would not be an answer, but I have got used to that in Committee. One or two of her recent comments have been moderately constructive, which is why I withdrew some amendments. In that constructive spirit, I hope that she will indicate that those offensive words can be removed, which would be a step in the right direction. The words are unnecessary, but we will hear what she has to say. 
 Clause 17 refers to the power to make regulations on a vast number of electoral matters. The Committee will know that I have already mentioned internal domestic reserved matters under the existing constitution of Gibraltar, which has been endorsed by the United Kingdom. If it has already been decided that electoral matters, which are matters of internal domestic concern, should be determined by the people of Gibraltar through their House of Assembly—they are such matters under British, let alone Gibraltarian, law—the provisions in clause 17(3), and in particular clause 17(3)(c) should be knocked out. Clause 17 states: 
''This section applies to regulations under section 16 . . . such regulations may''.
 Because our approach is not curmudgeonly or negative—we are open-minded and tolerant—we understand that such regulations should make consequential, supplementary provisions. Indeed, we even accept that they may make a provision extending or applying to Gibraltar or any part of the United Kingdom. However, we gib at the regulations on electoral matters, which are matters of internal, domestic law and therefore, by definition, questions of law for the United Kingdom under the 1969 Order in Council as well as for Gibraltar. Clause 17(3) states that those regulations may 
''modify, exclude or apply . . . any provision made by or under an Act or any provision of the law of Gibraltar.''
 I have the sense that the draftsman, whom I can observe through the prism at my disposal, is exceedingly intelligent and perceptive. He realises that there are a lot of bear traps here and that it is a problem to achieve symmetry between the legislative arrangements required. But I fear that he has taken the route of overkill. The consequence is that we have ended up with a Bill that goes too far in shifting the centre of gravity when a more constructive and medium position will ultimately be arrived at—I hope as a result of these discussions. 
 That is not just a technical question of legislative drafting. It is about good relations based on sensible democratic understandings between people faced with a difficult question. That is the key point. These days we have fallen into the trap, when faced with a difficulty, of trying to blast it out of the way and 
 obliterate it, when a constructive and sensible approach would be based on discussion. 
 We have discussed the matter sufficiently. I wait to hear what the hon. Member for Somerton and Frome has to say—he has nothing to say.

Yvette Cooper: We should resist these amendments. The hon. Member for Stone has made important points about the power to change the law of Gibraltar. I want to set out exactly what the power is and why the amendments are inappropriate. The power set out in clause 12(4) does not allow Parliament to make any change to the law of Gibraltar. It applies only to areas where the law of Gibraltar is affected in consequence of or in connection with its inclusion in an electoral region for the purposes of European parliamentary elections. It would not give us powers relating to its other elections, for example. It would not give us power through this order to change the Gibraltarian law on unrelated issues.
 Our intention would not be to change existing Gibraltarian law through orders of the Westminster Parliament. Such changes should be made by the Government of Gibraltar. We expect the Government of Gibraltar and the House of Assembly to amend their existing laws. For example, the provisions may relate to areas where there is already some Gibraltarian law and where it may be appropriate for amendments to be made by Gibraltarian law, and it will be possible and appropriate for Gibraltar to make those changes. There may be issues under section 95 of the Representation of the People Act 1983, which provides for the use of schoolrooms for candidates' public election meetings. Existing Gibraltarian law may prevent schoolrooms from being used for such purposes. We would then expect the Gibraltarian Government and the House of Assembly to address that matter through amending their law rather than by seeking to do so in the Westminster Parliament. 
 Where decisions are taken, we would expect them to be a matter for discussion with the Government of Gibraltar. There should be a flexible approach. It is important to maintain this power in the Bill. Until we can explore with the Government of Gibraltar all the complex detail of UK electoral law and how it can best be applied to Gibraltar, we cannot afford to risk finding that once the Bill has been enacted it is beyond our vires to make the necessary changes in secondary legislation. 
 There are examples in election registration of provision for extensive modifications of pre-existing election legislation in that way. It could also, for example, enable amendments to be made through order in the Westminster Parliament if the Government of Gibraltar thought that that would be easier. This might be done in the case of complex technical details that may already be the subject of change by means of orders in the Westminster Parliament; it may be simpler to include in them provisions that affect Gibraltarian law as well. 
 It may also cover areas in which the UK Parliament has a considerable stake. For example, matters that, if 
 not amended in Gibraltar, would have a significant effect in the UK. Among these are company registration and donations to political parties. If the amendments were not made in Gibraltar a company registered there could make donations to UK parties without any of the provisions of the Political Parties, Elections and Referendums Act 2000 applying. There are issues, which, even though they concern amendments to Gibraltarian law, will, as a result of the creation of a combined region, have a significant affect on the UK. For those two reasons it is important to retain the power in the Bill to amend Gibraltarian law, even though it is our intention that wherever possible the changes should be made in the House of Assembly in Gibraltar by the Government of Gibraltar.

David Heath: I accept the intention of the hon. Lady: she would like the changes to be effected through the Gibraltarian House of Assembly and pass into Gibraltarian law in that way. However, the effect of the provisions will be to repatriate to the UK Parliament the right to change Gibraltarian law unilaterally, and that is a retrograde step.
 I accept entirely that there must be conformity for electoral purposes between Gibraltarian law and that of the United Kingdom to ensure that there is no electoral malpractice or inconsistencies that would be detrimental to the electoral process, and I see no evidence to suggest that the Government of Gibraltar would not wish to comply immediately with any request of the United Kingdom Government. I am at a loss to understand why that should be affected by the process—and this a matter of process—of an order introduced into this House in order to change what is properly the concern of the Government of Gibraltar. I am afraid that the hon. Lady has yet to convince me—she might have convinced the hon. Member for Stone; I am not sure—that the provision is necessary. Its effect is retrograde as it deletes the degree of devolved administration in Gibraltar, and it means that the UK Parliament is arrogating to itself powers that it previously gave to Gibraltar, and there is no obvious reason why that should be done. 
 I could understand the Minister including in the Bill a provision to require conformity between the laws of Gibraltar and those of the United Kingdom before the franchise could be extended. That would have been a proper provision, but it would have left the responsibility for making law in the place where it should be—the House of Assembly of Gibraltar. The Minister has not yet persuaded me of her case, but I will reflect on what she said. It may be that the Member for Stone wishes to press his amendment. Although I understand the reasoning and the good intentions behind the Minister's reply, it raises more questions than it answers.

William Cash: There has been an interesting exchange. The Minister said that discussions will take place and gave a general indication that Gibraltar would be likely to legislate for itself. However, she implied that that would be the case only until a situation arose in which there were provisions, such as those relating to political donations or other matters that she mentioned, with which we could not entirely trust
 the Gibraltarians to comply. The Government do not really trust the Gibraltarians. That may be the cause of the problems that we have experienced throughout our consideration of the Bill. It probably also has a lot to do with the problems that the Government have experienced in respect of the Anglo-Spanish discussions and the Brussels process.
 Underpinning all this, I can imagine the legal adviser presenting his instructions to the parliamentary counsel drafting the Bill and saying that they should bear in mind that those people cannot be entirely trusted. I also imagine him saying that Gibraltar has a sort of colonial status, and that the UK Government had not wanted any of this to happen in the first place, but had been driven into it by that wretched court in Strasbourg, which they normally thought was a good institution but which had done them a great disservice on this occasion because it had fouled up the UK's relations with Spain. I imagine that legal adviser asking the parliamentary counsel, when drafting the Bill, to make sure that they gave the Government enough power to be able to insist on what they wanted. 
 The hon. Member for Somerton and Frome rightly made the point that this matter could have been dealt with in some other fashion, perhaps by primary legislation or by including a provision in the Bill requiring conformity. He was right to emphasise that using a statutory instrument for the purposes of what I described as Cardinal Wolsey's revenge again demonstrates a degree of constitutional paranoia, which has tended to bubble up to the surface repeatedly as we have considered the Bill. It is not just belt and braces, but a sort of straitjacket, which is quite a different thing. 
 I confess that I am in a quandary. On the one hand, I want the Government to follow through on what they have to say, and to do so by Report, but on the other, I am deeply concerned about the draconian character of the provisions. I must also take into account the fact that the Minister is putting the best gloss on the situation. 
 The provision is restricted to modifying the laws of Gibraltar in respect of elections to the European Parliament. However, if I were in the position of the Chief Minister of Gibraltar, I would ask myself whether, if the UK Government are prepared to go this far for elections, they would go further for something much worse in the pipeline, such as relations with Spain. Psychologically, I regard it as an extremely dangerous weapon. However, because I have had a welcome assurance that there will be discussions, and because I have heard that—all things being equal—these matters will be legislated for in Gibraltar, I am inclined to believe that we can return to the question on Report in the light of those discussions. 
 I urge the Minister to accelerate the discussions, so that we know which position to adopt before Report. On balance, I feel that the provisions are so offensive that I am bound to ask the Committee to divide, albeit without prejudice to discussions that may take place on Report. I may seek guidance on the question 
 because it is important to the people of Gibraltar. If we divide, I trust it will not prevent us from moving an amendment on the matter on Report. Could I ask for advice on that point before we do? I think that the Committee senses that the question is important enough for us to develop the argument a little further.

David Taylor: It is not possible to guarantee which amendments the Speaker may select on Report. I cannot give the hon. Gentleman the guarantee he seeks.

David Heath: The amendment would remove all of subsection (4). An amendment might be tabled on Report that would remove subsection (4)(b), which is the critical element in the provision. That might allow for a further discussion at that stage if necessary. Let us hope that it is not.

William Cash: On balance, I shall withdraw the amendment because the Minister has been specific about discussion and internal legislation. I do not need to repeat what I have said already. We will be able to employ some mechanism if on Report we experience any difficulties in dealing with the matter, which is the Bill's central provision for the people of Gibraltar, who are my prime concern. We have to protect their position. They are not here and cannot participate in the proceedings. The onus on us is therefore greater. Having made strong points, I believe that my course is correct. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

William Cash: I beg to move amendment No. 56, in
clause 12, page 7, line 4, leave out subsection (8).
 The amendment is an extremely interesting one.

Fraser Kemp: Fascinating.

William Cash: As the Whip says, it is fascinating. The provision it deals with is most unusual. I have never come across it before, but I stand open to correction. I have a slight interest in it for two reasons. First, I have not the foggiest idea why it is included. Secondly, I was the legal adviser to the ship repairers on the famous Aircraft and Shipbuilding Industries Bill in 1977. I was in private practice before I entered Parliament, and I was the chap who identified the hybridity in the Bill and had to argue the case—which we won—in the House of Lords. I should explain briefly—I am sure that you will allow me that indulgence, Mr. Taylor. The Lord Chancellor at the time, Lord Elwyn Jones, was one of the senior members of the Committee that was set up by the then Labour Government. When I got to my second to last point in the Moses Room, he gave me the most enormous wink, indicating that on that point I had won the day. I hope that you will forgive me for that little diversion, Mr. Taylor.
 Hybridity is an important constitutional principle that takes up many pages of ''Erskine May''. In essence, it exists when a category is created in a Bill and a class is created within the category and the different classes within that framework are treated differently. Some people believe that it involves being adversely affected, but it is not as simple as that. It depends on whether the classes within that category are treated differently. I am paraphrasing pages and pages of learned matter, but hybridity is a 
 fundamental principle of British constitutional and parliamentary law. Incidentally, it is also includes matters involving private interests. It is a question not only of public Bills where there is no private interest, but of a private interest being involved and a distinction being drawn between different categories within a class. 
 However, what I cannot immediately understand is why it is thought that an order made under the Bill could be hybrid. As far as I recall, hybridity applies only to affirmative resolutions, so only those parts of the Bill with order-making powers in statutory instruments requiring affirmative resolution could be hybrid. The consequences of establishing hybridity are horrendous from the Government's point of view—they are so democratic—because they enable the people affected to petition if the appropriate Clerks or the Speaker decree that the Bill is hybrid, and the order would have to go to a Select Committee for consideration. That is my recollection of the position, unless it has changed. I am looking at the Clerk, who is looking at me. I would be happy to receive further and better particulars because my memory is becoming a bit dim with the years, but it is curious that the House of Lords has a procedure for hybrid instruments whereas the House of Commons does not. That arises from page 587 of ''Erskine May''. 
 The curiosity about the provision in the Bill is that it refers in subsection (8) to standing orders of either House of Parliament when, in fact, it seems that we would not expect the House of Commons to be involved at that stage. The standing orders of each House are different in that respect. I recall, for example, that the Speaker can declare hybridity, after appropriate procedures have been gone through, after Second Reading or in Committee. It does not have to be done at any particular time during a Bill's time in the House of Commons, but there comes a point, at certain later stages of a Bill's passage, when the procedure could not be followed through because a Select Committee could not be set up in either House of Parliament. 
 Even if the drafting is defective and needs to be rectified, the real question is whether the provision is required at all. Why has it been included? What mischief, as the Government see it, are they seeking to avoid? By my terms, it would not be a mischief but an opportunity, under our normal constitutional procedures, to guarantee that people who were adversely affected—or differently affected—in the class had the opportunity to state their case. 
 If we were to apply that principle to other Bills or hybrid instruments, and knocked out the procedure, we would probably have a substantial row on the Floor of the House. People would be outraged by the idea that hybridity should simply be shunted off into exterior darkness, but that is what the Bill is doing in respect of matters pertaining to the democratic rights of the people of Gibraltar. The procedures stipulated in orders made under clauses 10 and 11, with all the wide powers that they will contain, including the exclusion of provisions in Gibraltar's laws, make me 
 nervous. I am not a very nervous person, but I am concerned because I see that the Government have anticipated all sorts of difficulties, which they want to avoid and which they are determined to get round, to the point of excluding the right of petitioners, under our normal constitutional procedures, to take the action necessary to defend themselves. 
 What is sauce for the goose is sauce for the gander. If the provision is passed, the next thing we will hear is that a similar provision could be applied to other legislation. I was the person responsible—with others, I am happy to say—for what happened to the Aircraft and Shipbuilding Industries Bill, in which I was very much involved, as the Committee will have gathered, so I have a particular interest in ensuring that we do not have a repeat performance of that now. If this provision had, in a slightly different shape, been in that Bill back in the 1970s, those industries would have been nationalised. I see the Whip smiling with satisfaction at that idea, but I have to tell him that I was very glad to prevent that happening on that occasion, with some help from my friends.

David Heath: I rise only to observe that this provision contains the sort of wording that makes those who want legislation to be intelligible to the average citizen despair. I really look forward to the day when we can draft Acts of Parliament that are understood by those whom their provisions affect.

Yvette Cooper: Clause 12(8) is included in the Bill, in effect, as a precaution to ensure that the 2004 timetable can be met. As the hon. Member for Stone has said, provisions in ''Erskine May'' apply—[Interruption.] I have a copy of page 587, which was deftly supplied to me by officials when the hon. Gentleman started speaking. They clearly expected that he would leap into intricate detail when faced with such an issue.
 Those procedures apply where orders are regarded as being hybrid, as the hon. Gentleman has set out, and treat private interests in different ways. The different procedures are given in House of Lords Private Business Standing Order No. 216. They exist for a good reason: to ensure that private interests are treated fairly. However, as the hon. Gentleman says, the procedures take some time and provide for quite extensive consideration that can take many months. Given our time scale—we have to ensure that the Bill is implemented before the 2004 election—that could have quite significant consequences. 
 We are not setting out with the intention of making different provisions for the same categories of people, or of introducing hybrid orders. However, we need to provide for circumstances in which a provision might be ruled hybrid through a technicality. For example, the provisions relating to permissible donors to political parties registered to contest European parliamentary elections will also need to apply in Gibraltar. In practice, it may not be possible to have exactly the same class of permissible donors in Gibraltar and the UK, although clearly that is our intention. 
 We will aim to avoid differences when possible. However, such differences are conceivable, because the 
 orders have not yet been drafted, as the detailed consideration has not yet taken place. In the end, there may be minor differences that will give rise to orders being regarded as hybrid, although only technically.

William Cash: I in no way want to introduce a note of flippancy, but is it possible that the Minister has in mind that the donations might be payable in euros?

Yvette Cooper: That is not an issue that I had considered, although given the hon. Gentleman's interests, I should have anticipated his question. I assure the hon. Gentleman that that was not a consideration.
 Effectively, this is a precautionary measure only. If one of the orders were ruled hybrid on a technical basis, it would be subject to an elongated procedure that might be appropriate and right under normal circumstances, but that would make it very difficult or impossible to implement the Bill—or at least important clauses of it—under the current circumstances, with the 2004 deadline looming ever closer. Given the ticking clock, we regarded the provision as an appropriate precaution, although we do not expect to need to use clause 12(8) when drafting the orders. On that basis, I hope that the hon. Gentleman will withdraw the amendment.

William Cash: I am sorry to disappoint the Minister. She is being candid, and I am grateful for that, but by being so, she has exposed the greater reasons for objection that I feared might exist. I said that I was nervous about the provision; I also referred to Wolsey's revenge. In relation to the timetable, Hon. Members might remember that Wolsey only managed to avoid being executed by dying en route to London, having been summoned by the king. We are being told that any unfairness that emerges from the provisions of an order of the Lord Chancellor should be allowed to persist, simply because it would be inconvenient and inexpedient from the point of view of time to prevent it. That is the most unacceptable reason that can be given. I understand the concern—particularly given that we are not against part 2 in general—to get all the ducks in a row so that we can move forward with the Bill, but we must do so in the right fashion.
 We have given a range of reasons why we have been concerned about other matters, but if it emerges that a provision is drafted in a way that produces hybridity, we should not be constrained by the time factors. I can think of many occasions when some of the most important events in parliamentary history have been frustrated because something that was wrong in principle has been resisted by the Opposition, or even by the Government Benches. The Maastricht treaty is one example. Opposition was set up against it at an exceedingly inconvenient time. The same may apply to the question of war with Iraq, unless opposition is crushed by the power of government—and, believe me, that is real power. 
 In the context of these provisions, serious constitutional issues could arise. We cannot anticipate them, because we do not know how the order will be drafted, what it will contain and so on.

David Heath: Is it not important that the Committee remind itself that the original judgment from the
 European Court of Human Rights on this matter was in February 1999? The time constraints are manufactured by the Government to delay introducing legislation for the enfranchisement of Gibraltar until the last possible moment before the 2004 elections.

William Cash: I congratulate the hon. Gentleman on a perceptive comment. He is right: all these things are artificial in the sense in which he has described them. What is not artificial is the fact that the Lord Chancellor is taking these powers against the background that we have already discussed. The short point is that we shall seek to divide the Committee on the amendment.

Yvette Cooper: Although the subsection is in place, there will still be clear constraints and protection for private interests. The aim of the Bill is to establish a level playing field between Gibraltar and the rest of the region with which it is to be combined. Article 3 of protocol 1 to the European Convention on Human Rights, which refers to free and fair elections, will clearly apply. Gibraltar will be treated in the same way as the rest of the region. The only reason to include the subsection is that, otherwise, minor differences in the treatment of certain private interests might give rise to a hybrid order on a technicality. That must be balanced against the overwhelming public interest to ensure that the main provisions of the Bill are in place in time for the 2004 elections.
 Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 9.

Question accordingly negatived. 
 Clause 12 ordered to stand part of the Bill.

Clause 13 - The Gibraltar register

William Cash: I beg to move amendment No. 57, in
clause 13, page 7, line 13, after 'Gibraltar', insert 
 'who shall be ordinarily resident in Gibraltar, following consultation with the Chief Minister of Gibraltar.'.
 The amendment is pretty straightforward. The clause specifies that there must be 
''a register of European Parliamentary electors in Gibraltar . . . maintained by the European electoral registration officer for Gibraltar.''
 It continues: 
''The Governor shall appoint a fit and proper person to be the European electoral registration officer for Gibraltar (and may at any time revoke such an appointment).''
 The appointment 
''must be published in the Gibraltar Gazette.''
 We have already discussed some of the constitutional functions that the Governor performs and the Conservatives are not suggesting that he would not be the right person to appoint a fit and proper person to be the European electoral registration officer for Gibraltar. However, the person who is appointed should be ordinarily resident in Gibraltar. We should not just parachute in somebody from Whitehall to perform further supernumerary and directed activities. This is all part of the same problem—the straitjacket problem—that returns again and again in relation to the Bill. 
 It would be inconceivable to have an electoral registration officer who was not ordinarily resident in Gibraltar. It is not as if Gibraltar does not have elections; there are people who know how to do such things. Even if there were any doubts about how matters should be dealt with in relation to the complementarity between the electoral legal systems that we have discussed, we have ironed out all these matters in extensive discussions. It would be inconceivable to have a person who was not ordinarily resident in Gibraltar. The fact that the idea is not specifically excluded suggests that the Government are not saying that it would not be a person ordinarily resident in Gibraltar. However, the Conservatives think that such a person should definitely be selected. That is the balance of the argument. 
 The question is important to the Government of Gibraltar, so we also suggest that any appointment should follow 
''consultation with the Chief Minister''.
 The clause states that the Governor 
''may at any time revoke such an appointment''.
 I find that especially odd. It is offensive because it could give draconian power to the Governor. It is almost as if it were anticipated that the Gibraltarians will get up to constitutional mischief. They have already caused us a great deal of trouble with Spain and they could get into a situation such as the one we just heard about with regard to political donations, so we must ensure that they cannot raise questions in the normal fashion through Select Committee procedure. One way or another, they have all the potential of being thoroughly troublesome. 
 To put the icing on the cake, whoever will be made a fit and proper person to the be the European electoral registration officer— 
 Sitting suspended for a Division in the House. 
 On resuming—

William Cash: I think I had finished what I was saying. I was merely making the point that for the Governor, who is unelected, to have the power to determine who the European electoral registration officer for Gibraltar should be, if that person were not an
 ordinary resident of Gibraltar, without consulting the Chief Minister, seems to be over-egging the pudding.
 If the Governor has the power to revoke such an appointment without giving reasons, that smacks of colonialism at its worst. It is like something Viscount Curzon might have done. It is almost beyond belief. The objection is coming from the Tory side. Will the Committee wake up sufficiently to recognise that I am a Tory shadow Attorney-General addressing a mostly Labour Committee that is totally silent on every aspect of the Bill? Labour Members should reflect on the fact that they are putting through ultra-colonial powers. It is inconceivable, if I step back for a minute and think about it. 
 The hon. Member for Somerton and Frome made intelligent observations about the Bill. His questioning added to the proceedings. This is not just an exercise in negative investigation. The people of Gibraltar have no voice in the Bill's parliamentary consideration. That is an inevitable consequence of the constitutional relationship between Britain and Gibraltar. Gibraltarians understand and accept that. They have said that, as far as they are concerned, the sovereignty of the United Kingdom is not in question and have made it clear that a balance should be struck between the functions of the two Houses. All that is fair. 
 We are not talking about the shadow Attorney-General and/or the Opposition trying to be difficult on a party political matter. This is a matter of objectivity in defence of the rights of people who are not here. Any remarks that I make can only be addressed vicariously by way of reply through the people of Gibraltar. I may be wrong, but for the purposes of European elections, in which I happen to be involved in my constituency, the region to which Gibraltar is combined may not turn out to be the one to which it becomes engaged—or married.

Gordon Marsden: Divorced.

William Cash: I have just heard the word, ''divorced''. It is wonderful to hear that word from a Labour Member. I pay my respects to some of the hon. Members who have contributed from time to time.
 The important point is that subsection (2) is, by any standards, draconian. It is no good to say, ''Oh well, we know that it will be exercised responsibly.'' We do not know that it will. Our job, on behalf of the people of Gibraltar, is to question whether the wording is correct. A power that allows the Governor of Gibraltar to revoke the European electoral registration officer's appointment without giving any reasons smacks of ultra-colonialism. That that provision should come from a party that purports to be democratic is a great shame. We find the Labour party repeatedly to be intrinsically undemocratic on constitutional matters. 
 I cannot say any more than that. I say with regret that the provision is not democratic, and I am bound to put that on record. I hope that the Minister will change subsection (2) in line with the amendment.

David Heath: I concur with the hon. Member for Stone that it would be advisable for a person who is
 normally resident in Gibraltar to act as the electoral registration officer. I hope that the Minister will be able to give assurances about that. I also noticed the rather draconian provision that to revoke such an appointment was in the hands of the Governor.
 Usually, I assume that normal employment practices would be maintained. However, I have two reasons to be concerned. First, there is no provision for remuneration for the post. I assume that that will come in secondary legislation. The Minister may be able to confirm that. The financial provision later in the Bill allows money to be paid from the Consolidated Fund for Gibraltar, presumably for that purpose. 
 Secondly, a Secretary of State would execute that function. We are clear that employment law applies to Secretaries of State. I am less convinced that it applies to the Crown, in the person of the Governor. Can the Minister confirm that there is no strange procedure by which a governor of a colony—as Gibraltar is clearly identified under the terms of the Bill—is outwith normal employment law? So long as that is not the case, there would have to be proper grounds for revoking such an appointment, should a decision be made to do so.

Yvette Cooper: The hon. Member for Stone is so enthusiastic in his desire to brand the Bill colonial that he has not checked his facts. Clause 13(2) has been drafted to mirror the arrangements that are provided for the appointment of the House of Assembly electoral registration officer. It was felt important to ensure that the same person could, were it thought appropriate, hold the two positions. The person appointed to compile the House of Assembly register could also be appointed to compile the European Parliament electoral register, because the job is sufficiently similar. If someone has the expertise to do that job, why reinvent the wheel and create an entirely different job?
 To achieve the same results, clause 13(2) establishes the same arrangements as those that are in place for the appointment of the House of Assembly electoral registration officer. Those arrangements are provided for in Gibraltar's House of Assembly ordinance, which was passed by the House of Assembly. In effect, therefore, that decision was made in Gibraltar, not by this House. All that we have sought to do in clause 13(2) is to mirror entirely the arrangements that the House of Assembly chose for its own registration requirements. 
 I should be happy to reconsider the matter if the House of Assembly and Government of Gibraltar wanted to change the arrangements for compiling the House of Assembly register. We have no particular view on that or stake in it; the intention was only to mirror Gibraltar's arrangements. If the Government of Gibraltar feel strongly about the matter and want us to reconsider it in time for the Report stage, we will be happy to do so, but the principle that we should attempt to mirror the arrangements that Gibraltar has chosen to put in place for its elections is perfectly sensible. That explains the drafting of that subsection. 
 The amendment would create a disparity between the arrangements for this register and those for the House of Assembly register.

Adrian Bailey: Does not my hon. Friend the Minister agree that to include the amendment against the wishes of the Gibraltarian House of Assembly would be profoundly colonialist in thrust and intention?

Yvette Cooper: My hon. Friend makes a fine intervention. Clearly it is right to ensure that the views of the Government of Gibraltar and the House of Assembly are taken into account. I shall happily reconsider the subsection should they believe that their arrangements should be amended. Until we have a view from them to that effect, the current drafting will remain.

David Heath: The Minister is having a little fun at the expense of Opposition parties here, and I do not blame her. However, an ordinance from the House of Assembly in Gibraltar applies only to Gibraltar. This provision applies to the United Kingdom and Gibraltar. The applicability of the two is different, so they are not directly comparable. I accept entirely, however, her view that it is helpful to have the same wording where possible.

Yvette Cooper: The hon. Gentleman is right that the ordinance applies only to Gibraltar, but the intention here is purely practical. It should be possible for Gibraltar to appoint the same person to do both jobs, because that option will cause much less stress for those involved.

William Cash: When was the House of Assembly ordinance passed?

Yvette Cooper: The advice, which officials are rapidly passing to me, suggests that it was passed at least before 1984, although we have not heard any proposals for it to be changed. If the House of Assembly wishes to change it, we will be happy to discuss changing the clause accordingly, but the matter rests in its hands for the time being.

William Cash: Actually, the matter rests in the hands of Parliament for the time being. I was suspicious that the arrangement might have existed for some time, and 1984 is about 20 years ago. At that time, the relationship between the United Kingdom and Gibraltar, and indeed other overseas territories, was substantially different.
 I have not had an opportunity to go through the constitution order of 2001, which sets out the House of Assembly's ideas on the future constitution of Gibraltar, but the bottom line is that it is highly likely that it was to be implemented by the United Kingdom along similar lines to those used in the Falklands in terms of methodology and consultation. I suspect that the Minister's debating point will evaporate because the House of Assembly would ensure that arrangements were made which brought the whole thing up to date. 
 The Minister mentioned in passing that there should be consultation with the Government of 
 Gibraltar as well as with the House of Assembly. The amendment states: 
''following consultation with the Chief Minister of Gibraltar'',
 who is, for all intents and purposes, the Government of Gibraltar. We therefore anticipated her point in the amendment. 
 The Minister has not dealt with the intrinsic question. The hon. Member for Somerton and Frome has pointed out the lack of symmetry between the arrangement vis-à-vis Gibraltar and the way in which the order-making power will affect the United Kingdom in its relations with Gibraltar. She has also failed to answer this fundamental point: a person should not simply be faced with a possibility of revocation at short notice. We have been through that, and all I can say is that I cannot regard the matter as one that should simply go through unchallenged. She has not appreciated our points and has not come up with satisfactory solutions. I therefore propose to divide the Committee. 
 Question put, That the amendment be made:—
The Committee divided: Ayes 4, Noes 9.

Question accordingly negatived. 
 Clause 13 ordered to stand part of the Bill. 
 Clause 14 ordered to stand part of the Bill.

Clause 15

Entitlement to be registered in Gibraltar 
 Question proposed, That the clause stand part of the Bill.

David Heath: I shall be brief. I wanted to make two inquiries of the Minister about the entitlement to be registered.
 First, there does not appear to be any provision in the Bill—in other words, in primary legislation—to avoid dual registration in Gibraltar and an electoral region of the United Kingdom. I am not sure whether that is intentional or whether it will be covered by regulation at a later date. 
 Secondly, what is the position of royal naval personnel who may from time to time be stationed in Gibraltar, either alongside or in the port?

Yvette Cooper: I am not in a position to give the hon. Gentleman detailed answers to his questions. I am happy to write to him and give him the answers. If he has further questions, clearly we can consider the matter again on Report.
 Overall, the clause ensures that the conditions for entitlement to be registered on the Gibraltar register 
 are similar to those applicable in the United Kingdom and provide similar conditions for registering as an overseas elector for ex-residents of Gibraltar as apply to British citizens in respect of the United Kingdom. 
 Question put and agreed to. 
 Clause 15 ordered to stand part of the Bill. 
 Clause 16 ordered to stand part of the Bill.

Clause 17 - Section 16: supplementary

William Cash: I beg to move amendment No. 64, in
clause 17, page 9, line 26, leave out from 'regulations' to end of line 29 and add 
 'may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament'.
 The amendment covers ground that we have covered before with respect to the subject matter of the regulations under clause 16. Clause 17 states that a statutory instrument containing such regulations shall be subject to annulment. I have just said something that surprises even me. I am astonished that a provision of this importance should be subject to the annulment procedure. It is obvious that it should be subject to affirmative resolution at the very least. The people of Gibraltar have no opportunity to participate in the debates in the Committee, on the Floor of the House or in the other place. Again it comes back to the Government's overbearing attitude. 
 I am truly astonished—I say that not out of synthetic concern—at the bloody-minded arrogance, if I may use the word, that lies behind the provision.

Tony Cunningham: That is three words.

William Cash: Yes, it is. It is three words, and each one is meant equally. It is astonishing that a matter of this importance should be subject to annulment. [Interruption.] I see the hon. Member for Newcastle-under-Lyme (Paul Farrelly) tittering a bit at the back.
 I hope that he appreciates that it is a matter of great importance, relating to people who could affect his constituents or mine, if we were to translate the territory of Gibraltar to an equivalence with our own constituencies. We would be truly concerned if these procedures were applied to our constituents. The hon. Gentleman has been a good constituency Member of Parliament in relation to a matter on which he and I worked together closely recently. He was anxious to protect the part of his constituency that was affected by certain development proposals. I am sure that if the situation of the Gibraltarians were translated to his constituency, he would not be sitting at the back of the Room and tittering. I am making an important point.

Paul Farrelly: The hon. Gentleman has known me for only a short time, but I guarantee that I have never tittered in my life. I may have tottered a few times. For the record, I was nodding in agreement with him that bloody-minded, being hyphenated, counted as one word, but he seems to be bloody-minded about people who agree with him.

William Cash: I am delighted to hear that, as on a previous occasion, despite our political differences, we
 agree on such an important matter. It is not important in the way that some parts of the Bill affecting Gibraltar could be described as lying on tectonic plates, but it is an extraordinary procedural aberration to make the provisions subject to annulment.
 The Government have a huge majority in the House of Commons. If they get their act together and apply the constructive dialogue that we have asked for, sometimes perhaps a little abrasively, but, in general, in a good-humoured and constructive fashion, they will get the centre of gravity in the Bill right. They must not go down this colonial route, which should stir some thoughts in the minds of Labour Members. To say on top of that that these order-making powers should be subject to the annulment procedure is quite extraordinary. 
 I think that I understand the reasoning behind the provision. Many of the regulations will contain provisions that could give rise to the hybrid instrument procedure—I trust that the Minister's advisers are listening—which is applicable only to statutory instruments. I happen to know a little about it. That affects the extent to which the provision would operate in practice. It is therefore part and parcel of my objections to clause 12(8). 
 Clause 17(1) states: 
''This section applies to regulations under section 16.''
 Therefore, the hybrid instrument procedure may not be excluded for the purposes of clause 12, and we need to look into that further. Having said that, I stand by my general comments about the need to ensure that all the statutory instruments in clause 16 are subject to affirmative resolution, not only those containing regulations under the European Parliamentary Elections Act 2002, which, as clause 17 says, 
''are subject to approval in draft under section 13(2) of that Act''..
 I have made my point. If I have been a little vehement about it, it is because I cannot imagine that the regulations could go so far in procedural terms as to exclude the affirmative resolution. I simply do not believe what I read.

Yvette Cooper: Clause 16 contains a regulation-making power that gives full effect to clauses 13 to 15. It fills in the details about the Gibraltar register, the franchise and the entitlement to register in Gibraltar. As drafted, regulations under that clause are subject to the negative resolution procedure unless they are to be made with the European parliamentary elections regulations, which is what clause 17(4) sets out.
 It will be necessary to make new regulations under section 7 of the European Parliamentary Elections Act 2002 for the United Kingdom generally for the 2004 elections. That would be the case even if Gibraltar were not being enfranchised, in order to address such matters as the rolling register, universal absent voting and so on. That is why we intend that most of the secondary legislation that needs to be made under clause 16 to cater for Gibraltar's inclusion in the elections should be made in the same instrument. That makes sense. It is for the convenience of everyone and ensures that electoral registration and returning 
 officers in the United Kingdom and Gibraltar have all the necessary detail in one place. In practice, the regulations will be subject to a debate in both Houses under the affirmative resolution procedure, because we intend that the regulations under clause 16 should be broadly included in regulations that include the European parliamentary elections regulations as set out in clause 17(4). 
 The reason for allowing the negative procedure to apply to further regulations that might be required under clause 16 was simply to enable issues that we have not yet anticipated to be included with the European parliamentary elections regulations, such as those involving minor amendments or smaller details that had not previously been considered. It makes sense to be able to consider them through the negative procedure.

William Cash: Has the Minister finished?

Yvette Cooper: I have not completely finished.

William Cash: I must come back to that by way of reply later. It may require a little more than an intervention would allow. I am astonished by the way in which the Minister is presenting the case.

Yvette Cooper: I am grateful for the hon. Gentleman's intervention of astonishment. He has not asked any question to which I should respond.
 We intend to combine these regulations with the European parliamentary elections regulations, which would enable them to be dealt with by the affirmative procedure. We consider it appropriate to allow for further detail to be addressed through the negative resolution procedure. Many of the issues relating to the register are important and therefore should be considered as part of the affirmative procedure, which is why we shall take them with the European parliamentary elections regulations. However, some issues are likely to be minor and to contain details that may need to be followed up. That is why clause 17 has been drafted as it has. 
 I am happy to consider the matter further, to ensure that the House gives appropriate consideration to any orders that are put forward. However, we must bear it in mind that the orders must be in place in time to meet the 2004 deadline.

William Cash: I remain astonished, for this reason. I listened with care to what the Minister said, but it bears no relation to what is in the Bill. I accept that, under the bureaucratic intentions behind the arrangements, the power to make regulations subject to affirmative resolution under the 2002 Act may be thought to be a convenient vehicle for dealing with these questions. I am looking at the Bill and I see that regulations under clause 16, not the 2002 Act, are stipulated under clauses 13 to 15, which takes us back to a huge swathe of stuff in the Bill: it is three pages of provisions. The regulations made under clause 16 apply to a vast array of potential changes. The Minister blithely tells us that the intention is that most of that will be done under the 2002 Act. She referred to minor points, as I am sure the transcript will reveal. That is not exactly what I would regard this behemoth as achieving.
 Furthermore, the Minister lightly passes over the fact that under clause 17 the supplementary arrangements relating to the regulation-making power in clause 16—this goes back to a question that we discussed earlier—include the modification, exclusion or application, with or without modifications, of any provision 
''made by or under an Act''—
 any Act— 
''or any provision of the law of Gibraltar.''
 In other words, it is open sesame, yet we are told in response that the clause is only to deal with minor points and that all will be dealt with by affirmative resolution under the 2002 Act. It simply defies belief that I should be given an answer of that kind. 
 Either the Bill means what it says and can be used, or it does not. The Minister tells us by way of a parenthesis that the 2002 Act is likely to be used. In the light of my concerns about the draconian and colonial way in which the Government are treating the Gibraltarians in this context, even she, smiling as she is at the moment, must realise that I am not likely to take on trust her assertion that such a matter will simply be dealt with under the 2002 Act. 
 However, I always look to the future with optimism and I trust that the serious question that I have raised about the difference between annulment and affirmative resolution will be resolved along the lines of my amendment. The idea that the United Kingdom Government, using their majority in the House, will bring in an order through the unelected Lord Chancellor to exclude provisions of any Act in relation to the subject matter of the Bill, or any provision of the law of Gibraltar, by annulment procedure is unthinkable. 
 I am sure that somewhere in the heart or bosom of the Labour party somebody is prepared to say ''This is not the right way to go about it''. We are not just sitting here in a Committee. Some thousands of miles away, or however far it is to Gibraltar, there are people who will be affected by the Bill. They do not have the benefit of being heard. For heaven's sake, is it not possible for somebody, even privately when we finish these proceedings, to say to the Minister, ''I don't agree with a great deal of what the shadow Attorney-General says on a number of matters, but on this one I think he has a point''? If the Government do not have a point to consider in the light of what I have just said, I feel very sorry for them. 
 Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 9.

Question accordingly negatived. 
 Clause 17 ordered to stand part of the Bill. 
 Clauses 18 to 20 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Mr. Kemp.] 
 Adjourned accordingly at two minutes to Five o'clock till Thursday 16 January at twenty-five minutes past Nine o'clock.